Page 1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 10565 OF 2014

(Arising out of S.L.P. (C) No.4726 of 2011)

State of Assam …Appellant

Vs.

Bhaskar Jyoti Sarma & Ors. …Respondents

With

CIVIL APPEAL NO. 10566 OF 2014

(Arising out of S.L.P. (C) No.9615 of 2011)

Jones Ingti Kathar …Appellant

Vs.

Bhaskar Jyoti Sarma & Ors. …Respondents

AND

CIVIL APPEAL NO. 10567 OF 2014

(Arising out of S.L.P. (C) No.25824 of 2011)

Gauhati Metropolitan Development

Authority & Anr. …Appellants

Vs.

Bhaskar Jyoti Sarma & Ors. …Respondents

J U D G M E N T

1

Page 2 T.S. THAKUR, J.

1.Leave granted.

2.These appeals by special leave are directed against an

order dated 21

st

September, 2010 passed by a Division

Bench of the High Court of Assam at Guahati whereby Writ

Appeal No.202 of 2007 filed by the respondents herein has

been allowed, order dated 13

th

April, 2007 passed by a

learned Single Judge of that Court set aside and the

respondents held entitled to restoration of the possession of

the land in dispute.

3.Late Bhabadeb Sarma, father of the respondents, was

recorded as a Pattadar of a plot of land measuring 73.26

Ares equivalent to 1 Bigha, 4 Kathas and 16 Lachas, covered

by K.P. Patta No.493 (old)/594 (new) in Dag No.1008(old) of

Sahar Ulubari, in Mouza Ulubari, Guahati. With the adoption

of Urban Land (Ceiling and Regulation) Act, 1976 by the

State of Assam, the said Shri Bhabadev Sarma submitted

returns under Section 6 of the said Act on 19

th

October,

1976. In Urban Land Ceiling Case No.343 of 1976 initiated

by the District Collector against the said Shri Sarma, a draft

2

Page 3 statement under Section 8(3) was served upon the owner in

regard to the land aforementioned which was, according to

the draft statement, beyond the ceiling limit of 2000 sq.

meters permissible under the Act. Upon consideration of the

objections raised by the owner to the said draft statement, a

final statement under Section 9 was prepared and published

on 3

rd

September, 1982 declaring an area measuring

7981.48 Sq. meters to be in excess of the permissible limit.

A notification dated 16

th

May, 1984 under Section 10(1)

followed declaring the vacant land aforementioned to be in

excess of the ceiling limit.

4.In November 1984, the owner appears to have sold a

major portion of the land in question to Mr. Kamala Kanta

Ozah and five others in terms of different instruments of sale

executed in their favour. A notification under Section 10(3)

was published on 1

st

January, 1987 and the land in question

declared Ceiling Surplus Government land. A part of the said

land was on that basis allotted in favour of 8 families in

terms of land policy of the Government while the remaining

area measuring 8.03 Ares was retained by the Government.

It is not in dispute that the land record was also corrected by

3

Page 4 deleting the name of owner Bhabadeb Sarma as the

Pattadar. It is also not in dispute that no land revenue was

collected from the erstwhile owners post vesting of the land

in the State under Section 10(3) of the Act.

5.The appellant's case is that possession of the entire

surplus land was taken over by the Revenue Authority on 7

th

December, 1992. This did not, however, deter Kamala Kanta

Ozah and others who had purchased the land either from

filing an appeal against the order of vesting or challenging

the proceedings in Writ Petition (Civil Writ Case No.2568 of

1992) filed before the High Court. Both these attempts made

by the purchasers of the land failed with the dismissal of the

appeal by the Secretary to the Government of Assam,

Department of Revenue and the dismissal of Writ Petition

No.2568 of 1992 by the High Court in terms of order dated

21

st

May, 2002. The High Court, it is pertinent to mention not

only upheld the order passed by the Collector-cum-

Competent Authority but also the allotment of a substantial

portion of the land in favour of 8 different families eligible for

such allotment. Writ Appeal No.419 of 2002 filed by Kamala

Kanta Ozah and others against the order passed by the

4

Page 5 Single Judge also came to be dismissed by the Division

Bench of the High Court by an order dated 20

th

December,

2002. Special leave petition filed against the said order too

failed and was dismissed by this Court on 8

th

August, 2003.

6.With the challenge to the proceedings under the Act

concluding in the manner indicated above, the Government

of Assam by an order dated 27

th

November, 2003 allotted an

extent of 8.03 Are to Guwahati Metropolitan Development

Authority (GMDA) for construction of an office building for

the said authority. In the meantime on 12

th

December, 2003

the Urban Land (Ceiling and Regulation) Repeal Act was

notified which came into force in the State of Assam w.e.f.

6

th

August, 2003. The appellant's case is that possession of

the allotted land was handed over to GMDA on 25

th

December, 2003 which action too came under challenge at

the instance of the respondents in Writ Petition No.2519 of

2004, who stepped into the shoes of Bhabadeb Sarma upon

his death on 3

rd

October, 1997. A Single Bench of the High

Court of Assam dismissed the writ petition upholding the

allotment of the land to GMDA and declined the prayer for

restoration of the possession in favour of the writ petitioners-

5

Page 6 respondents herein. Aggrieved by the said order, the

respondents filed Writ Appeal No.202 of 2007 before the

High Court which was allowed by a Division Bench of the

High Court by the order impugned in this appeal. The

Division Bench while setting aside the order passed by the

Single Bench directed restoration of possession of the

disputed parcel of land to the respondents. The present

appeals filed by the State of Assam and GMDA assail the

correctness of the said judgment and order of the High

Court.

7.We have heard learned counsel for the parties at

considerable length. The Urban Land (Ceiling and

Regulation) Act, 1999 repealed the Principal Act w.e.f. the

date the State adopted the Repeal Act. In terms of a

resolution passed under clause (2) Article 252 of the

Constitution, the Repeal Act was adopted by the State of

Assam w.e.f. 6

th

August, 2003. We may at this stage usefully

extract Sections 2 and 3 of the Repeal Act which have a

direct bearing on the questions that arise for our

determination:

6

Page 7 “2. Repeal of Act 33 of 1976 – The Urban Land

(Ceiling and Regulation) Act, 1976, (hereinafter

referred to as the principal Act) is hereby repealed.

3. Saving. – (1) the repeal of the principal Act shall

not affect –

(a)the vesting of any vacant land under

sub-section (3) of Section 10, possession

of which has been taken over by the

State Government or any person duly

authorised by the State Government in

this behalf or by the competent

authority;

(b)the validity of any order granting

exemption under sub-section (1) of

Section 20 or any action taken

thereunder, notwithstanding any

judgment of any court to the contrary;

(c)any payment made to the State

Government as a condition for granting

exemption under sub-section (1) of

Section 20.

(2) Where –

(a)any land is deemed to have vested in the

State Government under sub-section (3)

of Section 10 of the principal Act but

possession of which has not been taken

over by the State Government or any

person duly authorised by the State

Government in this behalf or by the

competent authority; and

(b)any amount has been paid by the State

Government with respect to such land

then, such land shall not be restored unless the

amount paid, if any, has been refunded to the State

Government.”

8.A bare reading of Section 3 (supra) makes it clear that

repeal of the Principal Act does not affect the vesting of any

7

Page 8 vacant land under sub-section (3) of Section 10, possession

whereof has been taken over by the State Government or

any person duly authorised by the State Government in that

behalf or by the competent authority. In the case at hand,

the appellant claims to have taken over the possession of

the surplus land on 7

th

December, 1991. That claim is made

entirely on the basis of a certificate of handing over/taking

over of possession, relevant portion whereof reads as under:

“ Certificate of handing over/taking over possession

Today on this 7

th

December, 1991, we took over

possession of 70.32 Are of acquired land as scheduled

below vide order of the Deputy Commissioner, Kamrup’s

ULC Case No.343 dated 2-3-91 and as per Assam Gazette

notification dated 1-1-87 in the case No.ULC343/76.

Schedule of land

xxx xxx xxx

xxx xxx xxx

Received the possession

(Taken over possession unilaterally)

Sd/-Illegible Given the possession

Designation – SK (G) Designation

7.12.91 Dated Dated

7/12

Countersigned

Sd/-Illegible

8

Page 9 Circle Officer

Guwahati Revenue Circle”

9.Relying upon the above document it was strenuously

argued on behalf of the appellants that actual physical

possession was taken over from the erstwhile land owner as

early as in December, 1991, no matter relevant official

record does not bear testimony to any notice having been

issued to the land owners in terms of Section 10, sub-section

(5) of the Act. It was argued that so long as actual physical

possession had been taken over by the competent authority

title to the land so taken over stood vested absolutely in the

State Government under Section 10(3) and could not be

claimed back no matter the Principal Act stood repealed

after such vesting had taken place. In support of the

contention that actual physical possession had been taken

over by the competent authority, the appellant places heavy

reliance upon the fact that challenge to the proceedings

under the Act mounted in Writ Petition No.2568 of 1992 by

the purchasers of a part of the disputed land had failed right

up to this Court and the allotment of a substantial part of the

surplus land in favour of the 8 families affirmed. This,

9

Page 10 according to the appellant, proves that possession of the

surplus land had indeed been taken over from the erstwhile

owner in terms of proceedings held on 7

th

December, 1991.

It was also contended that Bhabadeb Sarma, the erstwhile

owner, had remained aloof even when he was a party to the

writ petition filed by the purchasers who had questioned the

validity of the order passed by the competent authority

including the allotment of the surplus land in favour of third

parties. It was urged that the Repeal Act would have no

effect whatsoever even when the taking of possession was

without notice to the erstwhile owner especially when the

owner had failed to question any such take over at the

appropriate stage in appropriate proceedings. The challenge

mounted by the legal heirs of the deceased erstwhile owner

13 years later was clearly untenable and afterthought.

Failure of the land owner to seek redressal against non-

compliance with the statutory requirement of a notice before

possession is taken would constitute abandonment of the

right of the owner under Section 10 (5) which cannot be

resuscitated after lapse of such a long period only to take

advantage of the Repeal Act. The question whether actual

10

Page 11 physical possession of the disputed land had been taken

over is in any case a seriously disputed question of fact

which could not be adjudicated or determined by the High

Court in its writ jurisdiction.

10.Mr. P.K. Goswamy, learned senior counsel, appearing

for the respondents, on the other hand, argued that actual

physical possession must be proved to have been taken over

by the State Government or by a person duly authorised by

the State Government in that behalf or by the competent

authority in order that the saving of clause in the Repeal Act

could save any action already taken under the principal Act.

Possession of surplus land could, in turn, be taken only by

the owner surrendering or delivering possession to the State

Government or the persons duly authorised by the State

Government. In the event of failure or refusal of the owner

to surrender or deliver the same, possession of the surplus

land could be taken forcibly also but only in accordance with

the procedure prescribed. The Scheme of Section 10 does

not, according to Mr. Goswamy, permit taking over of

possession by the State Government or the authorised

person or the public authority without following the

11

Page 12 procedure prescribed under Section 10(5), namely, issuing a

notice in writing to the person to surrender or deliver the

same. Inasmuch as actual physical possession in the case at

hand is alleged to have been taken over without following

the said procedure the alleged take over shall be deemed to

be non-est in the eye of law atleast for the purposes of

Section 3 of the Repeal Act. Relying upon the decision of

this Court in State of Uttar Pradesh v. Hari Ram (2013)

4 SCC 280 , it was argued by Mr. Goswamy that the

procedure prescribed under Section 10(5) for taking physical

possession of the land under Section 10(6) was mandatory

and so long as the said procedure was not followed, no

possession can be said to have been taken over within the

meaning of Section 3 of the Repeal Act.

11.Section 3 of the Repeal Act postulates that vesting of

any vacant land under sub-section (3) of Section 10, is

subject to the condition that possession thereof has been

taken over by the competent authority or by the State

Government or any person duly authorised by the State

Government. The expression "possession" used in Section 3

(supra) has been interpreted to mean “actual physical

12

Page 13 possession” of the surplus land and not just possession that

goes with the vesting of excess land in terms of Section

10(3) of the Act. The question, however, is whether actual

physical possession of the land in dispute has been taken

over in the case at hand by the competent authority or by

the State Government or an officer authorised in that behalf

by the State Government. The case of the appellant is that

actual physical possession of the land was taken over on 7

th

December, 1991 no matter unilaterally and without notice to

the erstwhile land owner. That assertion is stoutly denied by

the respondents giving rise to seriously disputed question of

fact which may not be amenable to a satisfactory

determination by the High Court in exercise of its writ

jurisdiction. But assuming that any such determination is

possible even in proceedings under Article 226 of the

constitution, what needs examination is whether the failure

of the Government or the authorised officer or the

competent authority to issue a notice to the land owners in

terms of Section 10(5) would by itself mean that such

dispossession is no dispossession in the eye of law and

hence insufficient to attract Section 3 of the Repeal Act. Our

13

Page 14 answer to that question is in the negative. We say so

because in the ordinary course actual physical possession

can be taken from the person in occupation only after notice

under Section 10(5) is issued to him to surrender such

possession to the State Government, or the authorised

officer or the competent authority. There is enough good

sense in that procedure inasmuch as the need for using

force to dispossess a person in possession should ordinarily

arise only if the person concerned refuses to cooperate and

surrender or deliver possession of the lands in question.

That is the rationale behind Sections 10(5) and 10(6) of the

Act. But what would be the position if for any reason the

competent authority or the Government or the authorised

officer resorts to forcible dispossession of the erstwhile

owner even without exploring the possibility of a voluntary

surrender or delivery of such possession on demand. Could

such use of force vitiate the dispossession itself or would it

only amount to an irregularity that would give rise to a cause

of action for the aggrieved owner or the person in possession

to seek restoration only to be dispossessed again after

issuing a notice to him. It is this aspect that has to an extent

14

Page 15 bothered us. The High Court has held that the alleged

dispossession was not preceded by any notice under Section

10(5) of the Act. Assuming that to be the case all that it

would mean is that on 7

th

December, 1991 when the

erstwhile owner was dispossessed from the land in question,

he could have made a grievance based on Section 10(5) and

even sought restoration of possession to him no matter he

would upon such restoration once again be liable to be

evicted under Sections 10(5) and 10(6) of the Act upon his

failure to deliver or surrender such possession. In reality

therefore unless there was something that was inherently

wrong so as to affect the very process of taking over such as

the identity of the land or the boundaries thereof or any

other circumstance of a similar nature going to the root of

the matter hence requiring an adjudication, a person who

had lost his land by reason of the same being declared

surplus under Section 10(3) would not consider it worthwhile

to agitate the violation of Section 10(5) for he can well

understand that even when the Court may uphold his

contention that the procedure ought to be followed as

prescribed, it may still be not enough for him to retain the

15

Page 16 land for the authorities could the very next day dispossess

him from the same by simply serving a notice under Section

10(5). It would, in that view, be an academic exercise for

any owner or person in possession to find fault with his

dispossession on the ground that no notice under Section

10(5) had been served upon him.

12.The issue can be viewed from another angle also.

Assuming that a person in possession could make a

grievance, no matter without much gain in the ultimate

analysis, the question is whether such grievance could be

made long after the alleged violation of Section 10(5). If

actual physical possession was taken over from the erstwhile

land owner on 7

th

December, 1991 as is alleged in the

present case any grievance based on Section 10(5) ought to

have been made within a reasonable time of such

dispossession. If the owner did not do so, forcible taking over

of possession would acquire legitimacy by sheer lapse of

time. In any such situation the owner or the person in

possession must be deemed to have waived his right under

Section 10(5) of the Act. Any other view would, in our

opinion, give a licence to a litigant to make a grievance not

16

Page 17 because he has suffered any real prejudice that needs to be

redressed but only because the fortuitous circumstance of a

Repeal Act tempted him to raise the issue regarding his

dispossession being in violation of the prescribed procedure.

13.Reliance was placed by the respondents upon the

decision of this Court in Hari Ram’s case (supra). That

decision does not, in our view, lend much assistance to the

respondents. We say so, because this Court was in Hari

Ram's case (supra) considering whether the word ‘may’

appearing in Section 10(5) gave to the competent authority

the discretion to issue or not to issue a notice before taking

physical possession of the land in question under Section

10(6). The question whether breach of Section 10(5) and

possible dispossession without notice would vitiate the act of

dispossession itself or render it non est in the eye of law did

not fall for consideration in that case. In our opinion, what

Section 10(5) prescribes is an ordinary and logical course of

action that ought to be followed before the authorities

decided to use force to dispossess the occupant under

Section 10(6). In the case at hand if the appellant's version

regarding dispossession of the erstwhile owner in December

17

Page 18 1991 is correct, the fact that such dispossession was without

a notice under Section 10(5) will be of no consequence and

would not vitiate or obliterate the act of taking possession

for the purposes of Section 3 of the Repeal Act. That is

because Bhabadeb Sarma-erstwhile owner had not made

any grievance based on breach of Section 10(5) at any stage

during his lifetime implying thereby that he had waived his

right to do so.

14.Mr. Goswamy drew our attention to a decision of this

Court in State of Gujarat and Anr. V. Gyanaba

Dilavarsinh Jadega (2013) 11 SCC 486 to argue that a

Writ Court could also examine the question of dispossession

as was the position in that case which too arose out of a

proceeding under the Urban Land (Ceiling and Regulation)

Act. This Court in that case remanded the matter back to

the High Court to determine the question whether

possession of the land had been taken over before the

Repeal Act came into force. In the instant case the Single

bench of the High Court had while dismissing the writ

petition filed by the respondents relied upon the fact that the

writ petition filed by the purchasers of a portion of the

18

Page 19 surplus land had been dismissed and the allotment of a

portion of the surplus land in favour of separate family

affirmed not only by the Division Bench of the High Court but

also by this Court in a further appeal. The possession of land

purports to have been taken over from the erstwhile owner

in terms of proceedings dated 7

th

December, 1991.

Inference drawn appears to be that if allotment of

substantial part of the surplus land to the third parties has

been affirmed, it only means that possession was indeed

taken over for otherwise there was no question of allotting

the land to third parties nor was there any question of such

allottee-occupants using the same. We cannot, however,

ignore the fact that the question of dispossession of the

owner or the transferee was never agitated or determined by

the High Court in the writ petition filed by the transferee. We

could appreciate the argument if the issue regarding

dispossession had been raised and determined by the Courts

in the previous litigation. That was, however, not so,

apparently, because the question of dispossession was not

relevant in the proceedings initiated by the transferees who

were challenging the vesting order on the ground of their

19

Page 20 having purchased the surplus land from the owner. That

attempt failed as the Court found the sale in their favour to

be void. The question of dispossession relevant to Section 3

of the Repeal Act thus never arose for consideration in those

proceedings. It will, therefore, be much too farfetched an

inference to provide a sound basis for either the High Court

or for us to hold that dismissal of the writ petition filed by

the purchasers in the above circumstances should itself

support a finding that possession had indeed been taken

over. Having said that we must hasten to add that even the

Division Bench has while reversing the view taken by the

single bench not recorded any specific finding to the effect

that possession had actually continued with the erstwhile

owner even after the vesting of the land under Section 10(3)

and the proceedings dated 7

th

December, 1991.

15.In support of the contention that the respondents are

even today in actual physical possession of the land in

question reliance is placed upon certain electricity bills and

bills paid for the telephone connection that stood in the

name of one Mr. Sanatan Baishya. It was contended that

said Mr. Sanatan Baishya was none other than the caretaker

20

Page 21 of the property of the respondents. There is, however,

nothing on record to substantiate that assertion. The

telephone bills and electricity bills also relate to the period

from 2001 onwards only. There is nothing on record before

us nor was anything placed before the High Court to suggest

that between 7

th

December, 1991 till the date the land in

question was allotted to GMDA in December, 2003 the owner

or his legal heirs after his demise had continued to be in

possession. All that we have is rival claims of the parties

based on affidavits in support thereof. We repeatedly asked

learned counsel for the parties whether they can, upon

remand on the analogy of the decision in the case of

Gyanaba Dilavarsinh Jadega (supra), adduce any

documentary evidence that would enable the High Court to

record a finding in regard to actual possession. They were

unable to point out or refer to any such evidence. That being

so the question whether actual physical possession was

taken over remains a seriously disputed question of fact

which is not amenable to a satisfactory determination by the

High Court in proceedings under Article 226 of the

Constitution no matter the High Court may in its discretion in

21

Page 22 certain situations upon such determination. Remand to the

High Court to have a finding on the question of

dispossession, therefore, does not appear to us to be a

viable solution.

16.Confronted with the above position, Mr. Goswamy made

a suggestion. He urged that having regard to the fact that

Urban Land (Ceiling and Regulation) Act, 1976 has been

repealed as also the fact that no notice under Section 10(5)

was ever issued any proceedings meant to determine

whether actual dispossession had or had not taken place,

whether by the High Court or any Civil Court is bound to take

another decade if not more. The respondent would,

therefore, be happy and satisfied if the order passed by the

High Court is upheld except to the extent of land to be

restored to the respondents equivalent to 8.03 Are

(equivalent to 3 Kathas) which extent has been allotted in

favour of Guwahati Metropolitan Development Authority. The

appellant has responded to the said offer of the respondents

and pointed out that out of the eight families in whose

favour the surplus area was settled in the year 1992, four

families have been allotted disputed land in questing

22

Page 23 measuring 1 bigha, 4 Kathas, 16 laches. John Ingti Katha

one of the respondents in these appeals is one of such

allottees of the settled area. The affidavit further states that

settlement of 8.03 ‘Are’ (equivalent to 3 Kathas) was made

in 2003 in favour of GMDA in the year 2003 and that

restoration of the balance land i.e. 1 bigha, 4 Kathas, 16

laches to respondents 1 to 3 will affect the settlement

already made in favour of John Ingti Kathar and his wife, late

Bansidhar Duara and his wife, Sri Jyotimoyh Chakrabarty and

his wife and Sri P.S. Bhattacharjee and his wife. The affidavit

further give details of the settlement made in respect of the

dispute extent of land in favour of GMDA and the four

families mentioned above.

17.From the affidavit filed after the conclusion of the

argument in this case, it appears that the disputed extent of

land i.e. 1 bigha, 4 Kathas, 16 laches also stands fully settled

in favour of allottees. Such being the case the offer made by

Shri Goswamy does not appear to be a feasible solution at

this stage particularly when the allotments made are not in

question nor have the allottees been impleaded as party

respondents.

23

Page 24 18.In the result, these appeals succeed and are, hereby,

allowed. The order passed by the Division Bench of the High

Court is set aside and that passed by the Single Bench of

that Court affirmed. The parties are left to bear their own

costs.

………………………… ..…….…..…J.

(T.S. THAKUR)

………………………… ..……………..J.

New Delhi; (R. BANUMATHI)

November 27, 2014

24